Volume 86 — West Virginia Reports

Original mandamus by the State, on the relation of V. T. Churchman and others, members of the State Public Health Council, against Grant P. Hall, Mayor of the City of Charleston, and others. Writ denied.

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Bill by the Security Realty Investment Company against Lewis, Hubbard & Company and others. Decree for plaintiff, and Lewis, Hubbard & Company, appeals.</p>

Ejectment by tlie White Flame Coal Company against Emma Burgess and others. Judgment for defendants upon a directed verdict, and plaintiff brings error.

Suit by A. R. Johnson against W. A. Todd, G. R. Edgar, Farmers’ & Miners’ Bank, and C. J. Van Fleet, trustee. Demurrer to bill by defendant Todd overruled, plaintiff’s objection- to the filing of an amended answer by defendant Todd and an answer by the Farmers’ & Miners’ Bank overruled, and from a decree for the sale of the interests of defendants Todd and Edgar, the plaintiff and defendants Edgar and the Farmers’ & Miners’ Bank appeal.

<p>I. Vendor and • Purchaser — Writing Construed as Offer Binding oñ Acceptance Within Time Stated and Before Withdrawal. A writing signed by defendant and delivered to plaintiff, giving liim the “exclusive right to purchase or sell,” for the period of thirty days,, four city lots, describing them and stating the price of each lot and the terms of sale, and allowing plaintiff a commission of $200.00 on each of two of the lots on ' which are located1 dwelling houses, even though not binding .as an option, for want of consideration, is nevertheless a written offer which becomes binding on defendant as a contract of sale on notice of acceptance thereof within the time and before withdrawal thereof, (p. 31.)</p> <p>2. Same — Acceptance of Offer to Sell Reed not be.in Writing.</p> <p>Acceptance of such offer need not be in writing in order to convert it into a contract binding on the proponent, (p. 31).</p> <p>3. Same — Acceptance of Written Offer to Sell Held Accomplished by notifying Owner.</p> <p>Under such writing the agent has a right to purchase any or all the lots, and may bind his principal by notifying him, within, the time specified and before withdrawal of the offer, that he elects to purchase all the lots at the aggregate price stipulated, less his commission, and pay therefor either in' cash or according to the terms of the offer, (p. 31.)</p> <p>4. Same — •Agreement to “Make Title Perfect and Warrant General" Imports Title Olear of Incumbrances With General Warranty.</p> <p>An agreement “to make title perfect and warrant general”, properly construed, is an agreement to convey the property clear of encumbrances and warrant generally the title- thereto, (p. 31.)</p> <p>5. Appeal and Error — Where Plaintiff Was Entitled to Verdict Rendered Error in Instructions Are Not Prejudicial.</p> <p>Where the uncon'troverted evidence shows that plaintiff is entitled to a verdict for at least the amount the jury has found in his favor, this court will not review the instructions to ascertain whether the trial court committed error in respect thereto, for such error, if any, could not have prejudiced defendant. (p. 31.)</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by J. C. Michael against M. E. Donohoe and others. From a judgment abating the action, plaintiff brings error.</p>

<p>1. Highways — Record Showing County Court’s Refusal of Petition to Relocate Road Held Conclusive.</p> <p>Where the only record evidence of any action taken by the county court upon a petition praying the relocation' by that ■body of a portion of a county road within its jurisdiction shows its consideration of the proposal, refusal to undertake the work and dismissal of the proceeding, such evidence generally is conclusive where the alteration or relocation of such road is brought in question, (p. 42.)</p> <p>2. Mandamus — Lies to Compel Judicial Action, But Not to Determine Result.</p> <p>While ordinarily mandamus lies to compel an- inferior tribunal to act upon matters presented for adjudication, if within its jurisdiction, it is not available to require the exercise of judicial discretion or judgment in any particular manner. Its office is to compel the exercise of judicial action, but not to determine what the result of the adjudication shall be. (p. 43.)</p> <p>3. Jury- — Mandamus—Jury Trial Unnecessary in Mandamus Involving no Issue of Fact.</p> <p>In a proceeding in mandamus involving no issue of fact, trial by jury is unnecessary. Quaere: Whether trial by jury may ever properly be demanded as a matter of right in mandamus proceedings, (p. 43.)</p> <p>4. Mandamus — Remedies Provided for Acquiring Land for PuMic Road Precludes Mandamus.</p> <p>Generally there are but three methods by which the public may acquire a valid right to use land owned by another as ■ and for a public road or highway: (1) By condemnation proceeding, with compensation to the property owner for the damage resulting from such forceful taking; (2)- by continuous and adverse user by the public during the statutory period, accompanied by some official recognition thereof as a public road by the county court, as by work done on it by a supervisor acting by appointment of that tribunal; (3) by the owner’s dedication of the land to the public use, or by his consent to such use given in writing, and acceptance of the dedication by the proper authorities, (p. 44.)</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill for divorce by Lillie Bishop Kittle against G-. Bruce Kittle, with answer and cross-bill for divorce a vinculo and from bed and board. From a decree denying allowance of alimony pen-dente lite and attorney’s fees, from the overruling of her demurrer to the matter of the cross-bill and her exceptions to sufficiency of the answer to her bill, and from a final decree awarding her a divorce from bed and board, without alimony or suit money, complainant appeals.</p>

<p>Error to Circuit Court, Raleigh County.</p> <p>Action by A. E. Wysong against the Board of Education of Town District. Directed Verdict for defendant, motion for new trial denied, and judgment nil capiat on the verdict, and plaintiff brings error.</p>

<p>X. Bills and Notes — Provision in Deed for Abatement of Purchase Money on Deficiency of Land Held not Notice, to Purchaser of Notes.</p> <p>A stipulation in a deed reserving a vendor’s lien to secure payment of negotiable purchase money notes, providing for an abatement from t'be purchase money evidenced by the notes, in the event of a deficiency in the land, is not constructive notice of such right of abatement, to a -purchaser of the notes for value and before maturity, (p. 67).</p> <p>2. Same- — Buyer of Notes Without Actual Notice of Provision in Deed for Abatement of Deficiency in Land May Have Full Recovery.</p> <p>In the absence of proof of actual notice thereof at the time of his purchase or the legal equivalent thereof, he may recover the full amounts of the notes, notwithstanding the existence of a shortage in the land and right of abatement as between the parties to the conveyance, (p. 67).</p> <p>3. Vendor and Purchaser — Purchaser’s Right to Abatement May be. Asserted in Suit to Sell Land Under Vendor’s Lien to Pay Notes.</p> <p>But such right of abatement may be asserted in defense of a suit to subject the land on which the notes are so secured, to sale under the lien, for payment of the notes, the benefit of the lien being limited to the amount actually secured thereby, notwithstanding liability of the vendee to a purchaser of the notes before maturity, for value and without notice, for a larger amount, (p. 67).</p> <p>4. Biuls and Notes — 'Negotiability of Note Not Affected by Instrument Creating Vendor’s Lien.</p> <p>Though a negotiable note and an instrument creating a lien on real estate to secure payment thereof are related documents usually executed at the same time and may be, and sometimes should be, construed together, for some purposes, they do not necessarily constitute one instrument in the legal sense of the terms, and they may be so interpreted as to permit each to perform its own function, agreeably to the intent of the parties.</p> <p>(p. 68).</p> <p>6. Same — Purchaser’s Note Securing Vendor’s Lien is Commercial Payer, and Vendor’s Lien is Ancillary Thereto.</p> <p>In such case, the note is commercial paper performing the. functions, and haying the qualities, accorded to it by the law merchant, and the lien to secure payment thereof is ancillary collateral and incidental to it and legally separable therefrom, for full and complete effectuation of the intent and purposes of the parties to the two instruments, as disclosed by their terms. (p. 68).</p>

<p>Appeal from Circuit Court, Raleigh County.</p> <p>Bill .by Jacob Yost against John Wills and others. From a decree of dismissal, plaintiff appeals.</p>

<p>1. Evidence — On Question of Mere Existence of Written Contract it Need not he Offered in Evidence, hut Where its Construction is Involved it Must he Put in Evidence Unless Lost.</p> <p>Where for the purpose of an inquiry it becomes material to prove the existence of a contract which is in writing, the same need not be produced and offered in evidence if it is only necessary to prove that it exists, and its general tenor and effect; but if a consideration of its contents and a construction of its terms are necessary in order to a determination of the question involved, the writing must be introduced in evidence, unless it appears that it has been lost. (p. 82).</p> <p>2. Same — Testimony of Custodian of a Writing Held not to Justify Parol Proof of its Contents.</p> <p>Evidence by the custodian of a writing that it was in existence on the day before the evidence is being heard, and that he had phoned to his assistant in another city to send him such writing, and such assistant advised him that he had forwarded the same by special delivery mail, and that the same had not arrived, does not satisfactorily account for the absence of the writing so as to justify proof of its contents by parol evidence, (p. 82).</p> <p>■ 3. MasteR and Servant — Employer Has Burden, of Proving Relation of Independent Contractor.</p> <p>. Where the plaintiff in a suit to recover damages for a personal injury proves that the work in which he was engaged at the time of the injury was being conducted upon 'the premises of the defendant for its benefit, and that the services rendered by him were paid for by the defendant, he has made out a prima facie case showing the existence of the relation of master ' and servant between the defendant on the one hand and him and his coemployees on the other; and if the defendant would defeat liability for the injury upon the ground that such defendant and his coservants were employees of an independent contractor, the burden is upon him to show such fact.' (p. 84).</p> <p>4. Same — Requisites of Proof that One is Contractor.</p> <p>The determination of the question of whether a person performing work or doing business for another is a contractor for whose negligence the employer is not liable, or a servant for whose acts the employer is responsible, depends upon a consideration of the contract of employment, the nature of the business, and the circumstances under which the parties contracted and the work was -being done; and where such defense is interposed in a suit to recover damages for personal injuries received it cannot be sustained, unless the defend;- . ant proves the contract under which the work is being done and shows the circumstances and conditions in connection therewith, so that the court may determine 'therefrom the relation existing between such defendant and the party doing the work, as well as the injured plaintiff, (p. 84).</p> <p>5. Same — Pacts Showing Relation of Independent Contractor Must he Proved.</p> <p>An employer who seeks to bring himself within the rule excusing him from liability for injury to an employe, upon the ground that the work is being done by an independent contractor, in a case which shows prima facie the relation of master and servant, must by proof establish the facts- essential to the applicability of such rule. (p. 84).</p>

<p>Appeal from Circuit Court, Maso'n County.</p> <p>Action by Ashbell Hughes against J. O. McDermitt and F. E. Bletner. Decree for defendants, and plaintiff appeals.</p>

<p>Error to Circuit Court, Jackson County.</p> <p>Action by Pearl Miller and others for the use of their assignees, Henry Iiarbin and Emma Harbin, against C. W. Starcher. Judgment for plaintiffs, and defendant brings error.</p>

<p>Error to Circuit Court, Mason County.</p> <p>Action by John Kay, Sr., against the Director General of Railroads. Verdict for plaintiff, motion to set aside verdict overruled, and defendant brings error.</p>

<p>Error to Circuit Court, Roane County.</p> <p>Action by M. E. Hersman against the. County Court of Roane County. Verdict and judgment for defendant, and plaintiff brings error.</p>

<p>1. Appeal and EeRoe — Boundaries—New Trial — Conflict in Monument Held for Jury; Verdict on Conflicting Evidence in ¿Absence of Preponderating Contrary Evidence Cannot be Disturbed,</p> <p>Where a deed calls for a line between monuments as well as by course and distance, one of wbicb monuments is standing well marked and unquestioned, while the'other has long since disappeared and its location is not definitely ascertained, and surveyors differ in their locations of the latter, with the result that recent surveys purporting to represent such line ma. terially vary, each being supported by measurements to and from other known monuments, thereby enveloping its true location in doubt and uncertainty, the solution of the conflict so presented is peculiarly within the province of a jury, and its finding, in the absence of a clear preponderance of evidence to the contrary and of prejudicial error during the course of the trial, cannot properly be disturbed by the trial court upon motion or upon writ of error from this court, (p. 104).</p> <p>2. Witnesses — Contradictory Statements Are Admissible to Impeach if Proper Foundation Has Been Laid.</p> <p>Contradictory statements of a witness as to material facts are admissible in rebuttal for the purpose of weakening or destroying the value of his testimony, provided proper foundation for such impeachment has been laid, though they may not be admissible as primary evidence of the controverted fact. (p. 112).</p>

<p>1. Sales — Qualified Delivery Does Not Defeat Seller’s Lien for Price.</p> <p>A seller of goods for cash, has a lien for the price so long as he retains possession, and a qualified delivery does not defeat his lien. (p. 116).</p> <p>2. Same — Contract for Sale of Timber Untitled Seller to Lien for Pnce Until Lumber Loaded ón Cws.</p> <p>A contract for the sale of timber at a certain price per M. feet, to be ascertained by Doyle’s Log Rule, whereby the seller agrees to furnish, a mill site and lumber yard for sawing the same, the seller to cut and haul the logs to the mill where they are to be scaled and sawed by the buyer at his own expense, and the lumber then hauled to the railroad and loaded on cars by the seller, one half the price per M. feet to be paid monthly as the logs are delivered at the mill and the remaining half when the lumber is loaded on cars, contemplates final delivery on board the railroad cars, and entitles the seller to a lien for the unpaid balance of the price, on all the lumber hauled to the railroad and not loaded on cars. (p. 117).</p>

Suit by J. T. Musgrave against S. C. Musgrave and others for an accounting for royalties produced from oil and gas wells and for a division thereof -among all the heirs at law of John ■J. Musgrave, deceased. Demurrer to bill sustained, and plaintiff appeals.

Certified Questions from Circuit Court, Cabell County. Suit by J. 1ST. Potts and others, trustees, against the Longest & Tessier Company and the United States Fidelity & Guaranty Company and others. Demurrers to original and amended declarations overruled, and questions certified.

<p>Certified Questions from Circuit Court, Summers County.</p> <p>Action by W. P. Bowling, receiver, etc., against the Continefi-tal Insurance Company. Demurrer to declaration overruled, and question certified.</p>

Action by the E. T. Rarnum Iron Works against the Prescott Construction Company. Judgment for plaintiff, motion for new trial denied, and defendant brings error.

<p>1. Master and Servant — Employe's Widow Conclusively Presumed to Be Dependent Within Compensation Act.</p> <p>The widow of a deceased employee is conclusively presumed to be a dependent within the meaning of our workmen’s com-, pensation law, and is entitled to participate in the fund unless deprived thereof under the provisions of section 36 of the act, chapter 15P, Barnes’ Code 1918. (p. 182).</p> <p>2. Same — Non-resident Widow Supported by Employe Held Entitled to Participate in Workmen’s Compensation Fund; “Abandoned;" “Living Separate.”</p> <p>Where tihe widow of a deceased employee has continued to reside in another state in a home provided and paid for by him, and where he has continued to contribute to her support by money and clothing for the whole period of his absence, including the twelve months next preceding his death, and where he has continuously visited her and her children by him, though at intervals of one or two years only, and during the entire term has continued to write her on an average of twice each month, sending money and clothing, and professing love and affection and proffering continued support, they are not living separate and apart, nor has he abandoned .her nor failed to contribute to her support so as to deprive her, under said section 36, of- right to participate in said workmen’s compensation fund. (p. 182).</p> <p>3. Same — Non-resident Widow of Employe Contracting Bigamous Marriage Held Entitled to Participate in Workmen’s Compensation Fund.</p> <p>Nor will the fact that such deceased employee may during his sojourn (here have contracted a bigamous marriage with another woman and cohabited with her in this' State in any way operate to affect or deprive his lawful wife of participation in the workmen’s compensation fund. (p. 185).</p>

Certified Questions from Circuit Court, Marion County. Fred Vendetta was indicted for a felony for committing a second offense under tlie Prohibition Law, his motion to quash the indictment was overruled, and questions were certified.

<p>1. Evidence — Courts Do not Take Notice of Federal Departmental Acts not of General Public Interest.</p> <p>The courts of this state take judicial notice of the laws of the United States, proclamations of the President of the United States and official acts of the heads of -the executive departments of the federal government, of public notoriety or general public interest, hut not of departmental acts having no such character, (p. 193).</p> <p>2. Telegraphs and Telephones — Federal Control is not Inconsistent With Owner's Duty to Extend and Maintain its Lines.</p> <p>The complete and exclusive possession, supervision, control and operation of all the telegraph and telephone systems within the jurisdiction of the United States and of all of the equipment, supplies and materials belonging or pertaining thereto, for war purposes, by the government of the United States, authorized by Joint Resolution No. 38 of the 65th Congress and taken and assumed by the Postmaster General, under and by virtue of a proclamation issued by the President, is ' not inconsistent with right, power and duty' on the part of an owner of such a system, to extend its lines and improve, maintain and repair it, within the period of such possession, supervision, Control and operation, (p. 194).</p> <p>3. Same — Declaration for Negligent Injury Held riot Demurrable . on Ground of Federal Control.</p> <p>Though there may be no right of action against a telegraph and telephone company, for damages for an injury inflicted by the negligent use of a vehicle owned by it, while driven by an agent or employee of the federal' government, within the period of such possession, supervision, control and operation arid in the operation of such system, a count in a declaration against such owner, seeking recovery of such damages .and charging that the defendant, while using such vehicle in the operation of such system, by its - servants, agents and employees, so inflicted the injury, cannot be successfully demurred to, on the ground of such federal control of its telegraph or telephone system at the date of the injury, (p. 194).</p>

<p>1. Specific , Performance — Lessee’s Covenant to Furnish Lessor Free Gas for Domestic Use Enforcible.</p> <p>There is jurisdiction in equity, to compel specific perform- ' anee of covenants in leases, violations of which are not adequately remediable by actions at law, and also to enforce specific performance of a covenant in a lease of land for gas production, to furnish the lessor free gas for domestic purposes from wells on the leased land. (p. 200).</p> <p>2. Mines and Minerals — No Implied Covenant That Rent-Yielding Periods or Number of Gas Wells Shall be Limited.</p> <p>There is no implied covenant or condition in a lease of land for gas production, reserving a fixed, annual, money rental for each productive gas well to be drilled on the leased land and securing to the lessor therein, by a stipulation, right to free gas for domestic purposes on the land, that the rent-yielding periods or lives of the wells shall not be reduced or limited, nor the number of rent-yielding wells necessary to full development of the demised land, limited or restricted, by stimulation or acceleration of the flow of the gas from the wells and through, the pipe-lines, by artificial means or methods, such as operation of compressors and gas pumps, (p. 200).</p> <p>3. Same — Lessee Reducing Pressure so as to Destroy Lessor’s Right to Free Gas Must Restore Supply.</p> <p>The unrestricted right of the. lessee in a lease of land for gas production, to operate its lines and wells by means of compressors and pumps and thus reduce the gas pressure in the portions of lines lying between the wells and such compressors and pumps, by suction, to such an extent as to interrupt and destroy the lessor’s supply of free gas for domestic purposes from the wells, under a stipulation guaranteeing right thereto, does not absolve the former from obligation and duty to continue or restore such supply, even though it may be expensive and inconvenient to do so. (p. 200).</p> <p>4. Same — Lessee May Furnish Lessor’s Stipulated Free Gas From, Sources Other Than Wells Drilled on Leased Land.</p> <p>The provision in the stipulation for such free gas, that it shall be taken from the wells drilled on the demised land, is not of the essence thereof, wherefore the lessee may comply with the obligation thereof by furnishing the gas contemplated by it, in adequate quantities and for the required period of time from any other source, (p. 203).</p>

<p>1. Insurance — Iron Safe Clause Must Be Substantially Complied With.</p> <p>The promissory warranty commonly called the “iron safe clause” in a fire insurance policy covering- a stock of merchandise is a material provision of the contract of insurance, as the method adopted by the contracting parties of determining the amount of loss, and must he substantially complied with. (p. 205).</p> <p>2. Same — Insured Held not to Have Substantially Complied With ' Iron Safe Clause.</p> <p>Where the insured takes no inventory of his stock in store, except at the beginning of business about three months before the date of his policy, and thereafter at various -times adds largely to his stock by new purchases, and continues all the time to make sales therefrom at retail, keeping his accounts of such sales on slips which áre destroyed at the end of each week and only the figures showing the amounts of weekly sales are transcribed into a hook, he has not substantially complied with the iron safe clause and his policy is thereby rendered void. (p. 206).</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by John Cl Sutherland and others against W. M. Guthrie,. Judgment for plaintiffs, and defendant brings error.</p>

Petition by Mary J. Grass for the custody of her infant granddaughter, contested by James H. McMullen, the child’s father. Judgment for defendant, and petitioner brings error.

<p>Error to Circuit Court, Wayne County.</p> <p>Action of assumpsit by Thomas B. Napier against the Mozena Coal Company. Verdict and judgment for plaintiff, and defendant brings error.</p>

Suit for injunction by C. J. Bumpus and others against the Ohio Cities Gas Company and others, with cross-bill answer. Prom a final decree dissolving an injunction previously awarded to plaintiffs and perpetuating the injunction awarded defendants on their cross-bill answer, plaintiffs appeal.

<p>Appeal from Circuit Court, Hampshire County.</p> <p>Suit by William B. Stump and others, administrators, etc., against John Y. Hite. Decree for plaintiff William B. Stump, and defendant appeals.</p>

<p>1. Mastee and Servant — Driver Returning from Luncheon May he Acting Within Scope of Employment.</p> <p>A jury may properly find that an injury negligently inflicted upon a person by a motor truck driven by a servant of its owner, while returning from his luncheon agreeably to his usual custom and practice assented tp by the master, was a result or an incident of an act done by the servant within the scope of his employment, for which the master is liable, (p-. 239).</p> <p>2. Municipal Corporations — Driver of Vehicle Passing one on Which Children Are Riding Must Take Reasonable Precautions.</p> <p>The driver of one vehicle following another on the rear of which there are children whose attitudes indicate purpose or liability suddenly to step off of it, desiring to pass such other, is hound to adopt and use reasonable precautions .for the safety of the children, such as vigilance, warning and reduction of speed, if necessary, (p. 240).</p> <p>3. Same — Driver Following Vehicle on Which Children Are Riding Need Not be Able to Stop Instantly.</p> <p>But he is not required to have his car under such control, in such cases, that he may stop it instantly, upon a sudden and unexpected intrusion of a child so situated, upon the path or course of the car and immediately in front of it. (p. 242).</p> <p>4. Same — Sudden Intrusion of Child in Path of Vehicle Does Not Necessarily Preclude Liability.</p> <p>Sudden intrusion of a child so situated, upon the path or course of a passing vehicle, does not necessarily preclude liability of the driver of such vehicle for injuries resulting, since both parties have the right to use the highway and are under duty to exercise care and caution, (p. 243).</p> <p>5. Negligence — Child-Eight Years Old May be Guilty of Contributory Negligence in Use of Highway.</p> <p>A child eight years old may be guilty of negligence in the use of a highway, constituting the proximate cause of his own injury, or of contributory negligence in a transaction in which he suffers injury, barring right of recovery of damages therefor; and, if, in a trial of an action for such damages, there is evidence tending to prove such negligence or contributory negligence, a prayer for an interrogatory requiring the jury to find whether it existed or not should be granted, (p. 243).</p> <p>6. Same — Child Eight Years Old is Presumed Incapable of Appreciating Danger.</p> <p>In the trial of such a case, it is not error to instruct the jury that there is a presumption of incapacity on the part of an infant eight years old to appreciate danger, which the defendant must rebut by evidence or circumstances disclosed by the trial, (p. 243).</p>

<p>1. Accord and Satisfaction — Corporations—Release of Pledges of! Stoclc Admissible Under General Replication to Special Plea of Nonpayment.</p> <p>In an action of detinue to recover a certificate of stock pledged to secure payment of a debt, in which the pledge and non-payment of the debt are relied upon by way of defense, in a special plea, proof of a release of the pledge, or a discharge thereof by an accord and satisfaction, is admissible under the issue made by a general replication to the special plea. (p. 246).</p> <p>2. Pledges — Owner Lending Property for Use as Security Held to Have Ratified Unauthorized Pledge.</p> <p>A very slight departure from an authority given to pledge property loaned for use as security, acquiesced in by the lender thereof, after knowledge of such departure, amounts to a ratification of the pledgor’s act. (p. 246).</p> <p>3. Appeal and Error — Instructions Without Basis in Evidence Prejudicial Where Jury Could Find for Either Party.</p> <p>■ The giving of instructions having no basis or foundation in the evidence, in a case in which the jury might have found an unimpeachable verdict for either party, upon a basic issue made, is reversible error, (p. 248).</p>

Action by May 'Donald, an infant, suing by her next friend, against the- Long Branch Coal Company. Verdict for plaintiff was set aside, and the new trial granted, and plaintiff brings error.

Proceeding by the State against the United States Coal & Oil Company and W. T. Vance and others to sell forfeited tracts for failure to have them entered on the land hooks, with petition by the United States Coal & Oil Company claiming title. Cause referred to a commissioner, and de,cree, according to his findings, in favor of the United States Coal & Oil Company, and dismissing the State’s bill, and W. T. Vance and others appeal.

<p>Original proceedings in mandamus by tbe State, on the relation of Wm. II. Oroy, against the Bluefield Waterworks & Improvement Company.</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>•Action by the Harrison Engineering & Construction Company against the Director General of Eailroads. Judgment for defendant, and plaintiff brings error.</p>

<p>Error to Circuit Court, Payette County.</p> <p>Action by Robert Penix against James Grafton and others. Judgment for plaintiff, and defendants bring error.</p>

Mineral County. Action by Mary R. Harness, administratrix, against the Baltimore & Ohio Railroad Company and Walter D. Hines, Director General oí Railroads. Defendant railroad dismissed on its plea and motion and judgment for defendant. Hines on a directed verdict, and plaintiff brings error.

Action by Laeo Queen against A. A. Westfall and others. From a judgment of a justice, there was an appeal to the circuit court, defendants’ motion for u continuance was overruled, and there was a verdict and judgment for plaintiff, and defendants, bring error.

Certified Questions from Circuit Court, Lincoln County. Willie Tomlin was indicted for owning, operating, and possessing an apparatus for the manufacture, of intoxicating liquors. Demurrer to indictment and hill of particulars sustained as to the indictment in part, and questions certified.

Appea] from Circuit Court, Jefferson County. Suit by H. C. Page, executor of William W. Rouss, deceased, for instructions, against Pe.ter W. Rouss and others. Prom tbe decree, Peter W. Rouss appeals.

<p>New Trial — Exclusion from Jury of Relevant and Material Evidence May Be Ground for New Trial.</p> <p>Exclusion of relevant and material evidence on a trial by jury is error, and, if it relates to a vital issue and the state of the evidence is such that the court cannot say, as matter of law, a verdict in favor of the exceptor and losing .party could not stand, it is cause for a new trial.</p>

<p>1. Pkohibition — Writ Lies Only to Prevent Illegal or Excessive: Judicial, or Quasi Judicial, Action. -</p> <p>The writ of prohibition lies only to prevent illegal.or excessive judicial, or quasi judicial, action and not acts that are purely ministerial or governmental in character, (p. 317).</p> <p>2. Same — Does Not Lie to Prevent Ministerial Act of County Court in Expending Public Revenue.</p> <p>Prohibition does not lie to prevent a county court from expending the public' revenues in the erection of a bridge wholly outside 'of the limits of the county, - such act of the county court being purely ministerial, (p. 317).</p>

Action by the'Davis National Bank of Piedmont against C. E. Night, and Charles N. Finnell, administrator, d. b. n. c. t. a. of D. J. Long, deceased. Judgment for plaintiff, and defendant administrator brings error.

Suit by the Obio Finance Company against the Mannington Window Glass Company, John A. Ford, the Marion Window Glass Company, and others. Decree for plaintiff, and the named defendants appe,al.

<p>Error to Circuit Court, McDowell County.</p> <p>Action by John W. Edrvards, administrator of Frank C. Edwards, deceased, against the Masonic Mutual Life Association. Verdict for plaintiff Avas set aside, and he brings error.</p>

Action by Truman E. Cole against William T. George. Judgment for plaintiff, and defendant brings error. Action by Delbert Cole against William T. George. Judgment • for plaintiff, and defendant brings error.

<p>1. Frauds, Statute of — Contract not Void if it May be Fully Performed Within Year.</p> <p>Our statute of frauds does not render a contract void and unenforcible if in any possible event it may be fully performed according to its .terms within one year. (p. 353).</p> <p>2. Same — Does not Apply to Executed Contract; May Furnish Measure of Damage for Part Performed.</p> <p>The statute of frauds has no application to an executed contract, and when wholly or partially executed may furnish to the jury the proper measure of damages for the part performed. (p. 353).</p> <p>3. Payment — Receipts Are Only. Prima Facie Evidence of the Faets Recited.</p> <p>Receipts given, are only prima facie evidence of the facts recited, and may be overthrown by evidence showing that the facts are not as recited, when, as in this case, they relate to loss of profits for breach of a contract which had not occurred at'the time such receipts were executed, (p. 355).</p> <p>(Lynch,.Judge, absent).</p>

<p>1. Equity — Grantor Committing Fraud Upon Grantee Entitled to Little Consideration in Equity.</p> <p>Where a grantor of land, whether by general or special warranty or by Quitclaim deed, commits a fraud, actual or legal, upon his grantee, he is entitled to little, if any, consideration in a court of equity, (p. 360).</p> <p>2. Vendor and Purchaser — Grantee on Discovery of Grantor’s Fraud in Conveying Land 'Previously Conveyed May Have Deed Set Aside.</p> <p>If one who has previously sold and conveyed land, subsequently undertakes to sell and convey it to a third person, he can not justify his fraudulent transaction on the theory of forgetfulness, ignorance, or mistake. In such cases it is his duty to know and tell the truth, and his grantee may, on discovery of the fraud, rightfully elect to have the contract and. deed set aside and annulled, (p.' 360).</p> <p>3. Same — Grantor Committing Fraud on Grantee Cannot Benefit by Grantee’s Subsequent Purchase from Actual Owner.</p> <p>Where a vendor, by general warranty or quitclaim deed, has thus committed fraud on his vendee, he has ho right to the benefits of a subsequent purchase of the land by such vendee from the actual owner thereof, nor to profit by such transaction. (p. 360).</p> <p>(Lynch, Judge, absent).</p>

Suit by the Sulzberger & Sons Company against the Fairmont Packing Company, Charles Powell, trustee, and three others, with appearance by Powell, trustee, asking leave to file answer, and appearance by the National Bank of Fairmont, not made a party, and which, together with , Powell, trustee, asked leave to file a joint and several petition for a sale under a deed of trust, and in which other parties were brought as defendants.

<p>1. Forcible Entry and Detainer — Court May Direct a Verdict for Plaintiff on the Issue of Three Tears’ Possession.</p> <p>The issue as to whether .the remedy by unlawful entry and detainer is harred by three years possession, is one for jury determination; but, as to. it, the court may direct a verdict for the plaintiff if the evidence of such possession is too slight to sustain-a verdict based upon it. (p. 369).</p> <p>2. Same — The Remedy is Open to an Owner of Realty Wrongfully Claimed Toy City as Street.</p> <p>Unlawful entry and detainer may be invoked by an owner of real estate wrongfully claimed by a city as and for a street, and actually occupied and used by the public under the claim, authority and protection of the city. (p. 370.)</p> <p>3. Dedication — To Establish Implied Dedication the Pacts Must Clearly Show Owner’s Intent,</p> <p>To make out a case of dedication of private property to public use by implication, the facts relied upon to establish it must be of such character as clearly show the owner intended such dedication and they must be clearly and fully proved, (p. 372).</p> <p>4. Same — Acceptance with Owner’s Knowledge May A.id Weak Evidence; on Circumstantial Evidence Without Proof of Dedication? Verdict May be\ Directed for Plaintiff.</p> <p>In such case, an acceptance of the property by the public authorities, as having been dedicated, with knowledge of the owner, aids and strengthens weak evidence of dedication; hut if, in an action against a city to recover property so claimed, occupied and withheld, the evidence of dedication is circumstantial and uncertain and there is no proof of an acceptance, before revocation of the supposed dedication, the trial court may . properly direct a verdict for the plaintiff, (p. 372.)</p> <p>(Lynch, Judge, absent).</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action of unlawful detainer by the Clark Development Company against S. Sonnenberg. Verdict and judgment for defendant, and plaintiff brings error.</p>

<p>1. Municipal Corporations — Whether a Sufficient Warning of a Defect in a Street Was Given is for the Jury.</p> <p>The liability of a municipal corporation, for an injury to a person rightfully using one of its streets, occasioned solely by a defect therein of such character as to deprive it of the quality of reasonable safety, being absolute, it is for the jury to. say, in an action for resulting damages, whether the defect was so indicated by a marker, guard-rail or other means, as to give adequate warning of its existence, character and location and thus bar right of recovery on the ground of negligence on the part of the plaintiff, constituting the proximate cause of his injury or contributing thereto, unless the evidence so clearly and decisively shows sufficiency of such warning, that the court may declare it as a matter of law. (p. 382).</p> <p>2. Same — Whether Warning of a Defect in Street Was Sufficient a Question for the Jury.</p> <p>Whether a board sticking up.from a soft place in a street, large and deep enough to let a wagon-wheel go down, in it so as to cause the wagon to upset or turn over on its side,' dry and smooth on the surface and even with the surrounding sur- • face of the street, is sufficient warning of the defect, is an issue proper for jury determination, (p. 382).</p> <p>3. Same — Whether Defective Street With the Warning Given is Reasonably Safe is the Question in Action for the Resulting Personal Injury.</p> <p>In such case, the crucial question is whether the defective street, with the warning given, is reasonably safe for use and travel, notwithstanding the defect, (p. 382).</p> <p>4. Same — Warning of Defect in Street Must be Maintained.</p> <p>As liability for injury occasioned by an actionable defect in a street is absolute, warning of the existence of such a defect must be maintained as well as put up in the first instance, (p. 382).</p> <p>5. Trial — Where Personal Injury Results from Actionable Defect in Street or Plaintiffs negligence, Refusal of Instruction on Theory of Inevitable Accident is not Error.</p> <p>If, in such an action, the injury is shown to have been occasioned by an actionable defect in a street, or the negligence of the plaintiff, it is not error to refuse an instruction which would propound the theory of injury by inevitable accident , or another one-which would absolve the defendant from duty to insure the safety of persons using its streets, (p. 382).</p> <p>6. Same — Misleading Instructions May be Refused.</p> <p>Instructions that' would tend to- mislead the jury, if given, may properly b.e refused, (p. 382).</p> <p>7. Evidence — Testimony as to Physical Condition of Party Based on Observation of His Conduct is Admissible.</p> <p>Testimony of witnesses as to the physical condition of a party to an action, when relevant and material, based upon their observation of his conduct and actions is admissible, (p. 383).</p> <p>8. Appeal and Error — Verdict Held not Excessive Although Contradictions of Plaintiffs Testimony as to Extent of Injury are Supported.</p> <p>A verdict dependent as to the quantum of- damages, upon permanency of the plaintiff’s injury; supported by evidence other than the testimony of the plaintiff, will not be set aside as being excessive, even though his testimony as to the extent of his injury is contradicted by extra-judicial admissions and conduct, so explained by him as to set forth a reasonable motive for them. (p. 383).</p> <p>(Lynch, Judge, absent).</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Trespass on the case for assault and battery by Alphonso Eggleston against E. M. Tanner and others. Judgment for defendant Tanner on a directed verdict, an'd plaintiff brings error.</p>

<p>Appeal from Circuit Court, Mercer County.</p> <p>■ Suit for partition by Elizabeth Howerton Runyon and others against Hugh G. Mills and others. Bill dismissed, and complainant Runyon appeals.</p>

<p>1. Pleading — Preceding Declarations not Referred to in Amended Declaration Considered as Abandoned.</p> <p>Where an amended declaration, complete in itself, does not refer to or in any manner adopt or make preceding declarations parts of it, the latter will be considered and treated as withdrawn and abandoned, (p. 394).</p> <p>2. Electricity — Company Maintaining Highly Charged Wires in Exposed Place Must Malee Them Safe as to Persons Lawfully Hear Them.</p> <p>A company maintaining an electric line, oyer which a current of high and dangerous voltage passes, in a place to which it knows or should anticipate others lawfully may resort for any reason, such as business, pleasure or curiosity, and in such manner as exposes them to danger of contact wi'tik it by accident or inadvertence,. is bound to take precaution for their safety by insulation of the wire or other adequate means. (P. 394).</p> <p>3. Same — Declaration for Death of Child from Uninsulated Wires Held to State a Cause of Action.</p> <p>A declaration alleging that defendant, for a period of two years or more, permitted its uninsulated high-power transmission cables, carrying a current of dangerous voltage, to remain within four feet of the top of a pile of slate, slag or other refuse from a nearby coal mine, lawfully placed there subsequent to the erection of the cables by the owner or lessee of "the tract over which they passed, when defendant knew or should have known that children of miners living in that neighborhood had long been accustomed to play on the pile, but made no effort to safeguard and protect them by the insulation, elevation or removal of its lines to another portion of the tract, as a result of which failure plaintiff’s intestate, a child of tender years, was killed, states a cause of action, (p. 397).</p> <p>(Lynch, Judge, absent), ..</p>

<p>Original mandamus by the State, on relation of R. H. Carter, against John Nuttall and others, as the Board of Ballot Commissioners, consolidated with mandamus by the State, on the relation of K. A. Atkinson, against John Nuttall and others, as the Board of Ballot Commissioners.</p>

<p>Error -to Circuit Court, Randolph County.</p> <p>Action by-the Hardman Lumber Company against the Keystone Manufacturing Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court. Mingo Countj.</p> <p>Suit by Thomas Iiatfield by motion for judgment against Thomas Blount, with attachment against defendant’s property, in which, after the granting of a motion to- quash the attachment and affidavit and the filing o-f another affidavit, the National Bank of Commerce intervened by suit against defendant Blount, and attached the same property. Intervener was allowed to make defense against plaintiff’s attachment, its motion to quash plaintiff’s attachment was overruled, and plaintiff’s lien was held superior to its Ren, and intervener brings error.</p>

<p>Appeal from Circuit Court, Pleasants County.</p> <p>Suit in equity by Ellsworth Wiley against Walter Reaser, K. Snodgrass, and others, in which Samuel Boyles filed a peti- ■ tion joining plaintiff in plea for relief. Decree for plaintiff, and for Boyles, and defendants K. Snodgrass and others appeal.</p>

<p>Error to Circuit Court, Obio County.</p> <p>Osceola A. Statler was convicted before a justice of the peace of exceeding the speed limit in Ohio county, and on his appeal to the criminal court of that county and a trial before a jury was found guilty, which judgment was affirmed on error to the circuit court, and he brings error.</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Rufus Hensley was convicted of bringing intoxicating liquors into the state and of carrying such liquors betwe'en points in the state, and he brings error.</p>

<p>Certified Questions from Circuit Court, Greenbrier County.</p> <p>Action by S. C. Beard against George RT. Davis. Plea in abatement rejected, and demurrer to declaration overruled on each count thereof, and questions certified.</p>

Action by the Vaughan Construction Company against the Virginian Railway Company. Verdict for plaintiff, and from a judgment setting it aside, and granting defendant a new trial, plaintiff brings error.

<p>Error to Circuit Court, Barbour County.</p> <p>Action by Eloyd Teter against 'William George and others. Motion to quasb an attachment affidavit overruled, and defendants bring error, and plaintiff assigns cross-error upon an order quashing the attachment. Erom a judgment for plaintiff, defendants take also another writ of error.</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by TI. H. Fisher against the Flanagan Coal Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. New Trial — Where Costs Are not Paid as Required, Court Need not Bet Aside Grant of Neio Trial.</p> <p>Although the requirement of payment of the costs of a trial, before the first day of the next regular term of a court, imposed as a condition subsequent, on the granting of a new trial, has not been complied with, the court is not bound to set aside the order granting the new trial. It has discretion to let the order stand and award an execution for the costs, and, if payment -is tendered in resistance of a motion to set it set aside, may let it stand, without issuance of an execution, (p. 470).</p> <p>2. Apreal and Error — Where Verdict is Bad for One Tenable Ground, Appellate Court Will Not Inquire Into Sufficiency of Another Ground.</p> <p>If a verdict is erroneous and has been set aside for excessiveness and an additional reason, and the latter ground is tenable, the appellate court will not enter upon an inquiry as to whether an effort to cure the first named defect, by a remit- ‘ titur, is sufficient or was made in time.(p. 478).</p> <p>3. New Trial — May be Awarded on Motion or Ex Mero Motu for Erroneous Instruction not Objected to.</p> <p>A trial court may, ex mero motu, or -on the motion of a party to the action, award a new trial on the ground of error in the giving of an instruction unobjected to and, as to the giving of which, no exception was taken, or upon any other valid ground, (p, 470),</p> <p>4. Physicians and Surgeons — Burgeon not Negligent in Using Approved Treatment.</p> <p>If a surgeon adopts, in the treatment of a case, a method established and approved by physicians and surgeons generally, in the community in which he performs the operation or gives the treatment, at the time thereof, and is not negligent or careless in its application, he is not liable for injuries caused by such treatment, (p. 475).</p> <p>5. Same — Surgeon not Bound at His Peril to Adopt Best Method of Treatment.</p> <p>If there are two or more approved methods of treatment of an injury of the kind committed to his care, he may adopt the one which, in his honest opinion, will he 'the more efficacious and appropriate under all 'of the circumstances, and, in such case, he is not liable for an injury resulting from an error in ihis judgment, if there he one. He is not bound at his peril to adopt the best method, (p. 475).</p> <p>& Same — Other Method of Treatment Than That Used He.ld Inadr missihle. ■</p> <p>In an action for malpractice by a physician or surgeon, it is error to admit evidence of a method of treatment, antedating the treatment involved, by a long period of time, and differing materially from the method adopted in the treatment and generally approved and used at the time thereof, (p. 475).</p> <p>7. Same — When Method of Treatment Employed Was Clearly Proper, Instruction on Negligence in Adopting Method is Erroneous.</p> <p>The propriety of the use of a plaster-paris cast in the treatment of a compound comminuted fracture of the leg, having been established by uncontradioted evidence, in a case in which a surgeon is charged with malpractice in the treatment of the wound, it is error to give an instruction based upon the hypothesis of negligence in the mere adoption and use of this method, even though an injury has followed, which might have ■ resulted from use thereof in an' improper manner, (p. 4'75).</p> <p>8. Same — Instruction Founded in Assumption of Evidence of Incompetency and Negligence of Hay and Night Nurses Held Error.</p> <p>If, in the trial of such a case, incompetency of the nurses is relied upon, and no evidence has been adduced for the purpose of proving it, except lack of graduation of the day and night nurses, the head nurse being a graduate, and there is no evidence of any omission of, or departure from, the instruc- ■ tions given them, nor of any action or conduct on their part resulting in .or causing the alleged injury, it is error to give an instruction founded upon the assumption of evidence of their incompetency and negligence, or either of them. (p. 477).</p> <p>9. Appeal awd Error — Appellate Court, After Finding That Yerdiet Was Properly Set Aside, Will Not Consider the Sufficiency of the Evidence.</p> <p>On a writ of error to a judgment awarding a new trial, the appellate court, after having ascertained that the verdict for the plaintiff was properly set aside for an error in tire trial, other than refusal to direct a verdict for the defendant, if any, will not ordinarily enter upon an inquiry as to the sufficiency of the evidence to sustain the verdict returned and set aside, (p. 478).</p> <p>(Lynch, Judse, absent).</p>

■ Original mandamus by the State, on relation of Id. H. Franklin and others, against the County Court of McDowell County and others, to compel the appointment of persons designated on relators’ list as officers to represent a party at a primary election.

<p>Error to Circuit Court-, Randolph County.</p> <p>Action by Ruhalia Holsberry and others against the city of Elkins. Judgment for defendant, and plaintiffs bring error.</p>

Action of assumpsit by A. G. Rutherford against the Provident Life & Trust Company and Edward R. Wood, Jr., as executors and trustees under the will of Stuart Wood, deceased. Judgment for defendants, and plaintiff brings error.

<p>Original mandamus by the State, on relation of W. E. Me-Knight, against Krank Wells Clark and others, as the Board of Ballot Commissioners of Wetzel County.</p>

<p>1. Contract — Where One of Parties to Written Contract for Lease of Land Did not Sign it, Held, There is no Completed Contract.</p> <p>■Wiliere, after negotiations, parties reduce their understandings to writing Which provides for the signatures of all of them thereto, and ‘there is nothing to show that they intended 'their contract .to be completed unless such writing was signed by all of the parties, and the subject matter is such as is ordinarily the .subject of a contract in writing, as in this case a contract to lease land for a term of thirty years, and one of the parties does not execute the written contract, it will be held that there was no completed contract binding upon the parties, (p. 501).</p> <p>2. Same — Rule Stated as to Conditions Making it Essential That a written Contract for a Lease Should he Executed hy All Parties.</p> <p>In such case, whether or not the due execution by all of the parties of the written contract will be considered as essential to bind any of them will depend upon the conditions which ■brought it into being. If the subject matter of-the contract is such as. is ordinarily covered by a contract in writing, if the paper itself shows -that the signatures of all the parties were contemplated thereto, and the matter contracted about is such .that unless signed by all the parties they would not all be bound thereby, in the absence of a showing of something done undecr the contract indicating the intention that it should he carried out, notwithstanding the non execution of the writing ■ upon the part of one of the parties thereto, it will he held not to constitute a .binding obligation upon any of the parties, (p. 501).</p>

<p>1. Limitation or Actions — Remainders—Reversions-—Statute Begins to Rim from Termination of Agency or Trusteeship Involving Numerous Acts; Suspension by Intervening Estate.</p> <p>Where an agency or trusteeship ;has currency, or involves numerous acts or a course of business involving many transactions, the statute of limitations begins to fun, not from the date of each transaction, but from the termination of such agency, and not then if the right to the possession of the property or payment of the money, the subject of the agency, be suspended by some intervening estate for life or other térm; and in the latter case the statute will begin to run only from the time such intervening right is terminated; nor is 'the equitable rule of laches applicable during the term, of such intervening estate. Op. 505).)</p> <p>2. Equitv — Bill for an Accounting and to Set Aside Seeds Issuing as Defendants All Beneficiaries of Fraud is not Multifarious.</p> <p>Where a bill for an accounting also charges fraud and conspiracy as grounds for setting aside deeds depending on a. power of attorney executed by the plaintiff, but subsequently revolted by him, it is not multifarious for joining as defend-' ants in one suit .all the beneficiaries of such fraudulent transactions, all being interested in the rights and remedies presented by the bill. (p. 506).</p> <p>3. Same — On Bill Founded on a Ground of Equity Jurisdiction the Court May Do Complete Justice.</p> <p>Where a bill in equity is well founded, on fraud or other well recognized grounds of equity jurisdiction; the court may go on to do complete justice between the parties although the effect of its decree may be .to remove deeds as clouds upon the title of the plaintiff not in possession of the land purporting to he conveyed thereby, (p. 507).</p> <p>(Lynch, Judge, absent).</p>

Proceeding by tbe State, on the relation of Frank Allen and others, to review the action of E. T. England, Attorney General, in approving a proposed bond issue of the county court of Marshall County for building and Improving certain roads of Cameron District therein. .

<p>Original mandamus by the State, on the relation of M. Z. White, against the County Court of Mingo County and others.</p>

. Error to Circuit Court, Ritchie County. Action by R. E. L. Erymier against the Lor ama Railroad Company.

<p>Error to 'Circuit Court, Barbour County.</p> <p>Action before a justice of tlie peace by H. C. Daugherty against the Board of Education of Philippi District. Trial in circuit court and judgment for defendant, and plaintiff brings error.</p>

<p>Constitutional Law — Statute Defining “Vagrancy” Held an Unconstitutional Restraint Upon Personal Liberty.</p> <p>Section 2 of chapter 12, Acts 1917, Second Extraordinary Session, providing that every able bodied male resident of this state 'between the ages of sixteen and sixty years, except bona fide students during school term, who shall fail or refuse to regularly and steadily engage for at least1 thirty-six hours per week in some lawful and recognized business, profession, occupation or employment, shall be held to be a vagrant and be guilty of a misdemeanor, and punished as 'therein provided, re- . gardless of the financial ability of such person to maintain himself and his dependents without performing such labor, and regardless of his ability to obtain such employment except as therein provided, is unconstitutional and void as imposing unnecessary and unreasonable restraint upon personal liberty, and. as having no just or reasonable relation to the things generally comprehended within 'the police power of the state.</p> <p>(Lynch, Judge, absent).</p>

<p>1. Mandamus — Alternative Writ Held Sufficiently Executed to Justify Issuance of Peremptory Writ.</p> <p>An alternative writ of mandamus issued in a proceeding brought to compel the common council of a municipal corporation organized under Chapter 47 of the Code to perform a duty required by law to be performed by it, is sufficiently executed to justify tile issuance of a peremptory writ if served personally upon a majority of the members of such council and upon the remaining members by delivery to their respective wives at their residences, in their absence from the county, (p. 534).</p> <p>2. Elections — Election Held at a Time Different from That Required liy Law is Void.</p> <p>An election required by law to be held at a particular time will be void if held at a time different from that appointed by law, unless its holding at a different date is compelled by a court of competent jurisdiction, (p. 535).</p> <p>3. Mandamus — Writ Lies to Compel Municipal Officers Failing to Hold Flection to Hold it at a Later Fate.</p> <p>If the officers of a municipal corporation organized under Chapter 47 of 'the Code, fail to hold the election provided by sec. 17 of that Chapter at the time therein appointed, they may he compelled by mandamus to hold such election at a later date. (p. 535).</p> <p>.Original mandamus by the State, on relation of J. M. Lorentz, against W. S. Pierson, Mayor of the town of Henry, and others, to compel the council of the town to provide for holding an election which should have been held on a former date.</p>

Original petition by tbe City of Charleston for relief from an order of the Public Service Commission relating to the furnishing of water by the West Virginia Water & Electric Company to the city and its inhabitants and to the rates to be¡ charged therefor.

Separate proceedings in mandamus by the State, on the relation of Hiram Sizemore, P. E. Shannon and J„ames P. Cooper, against W. L. Hunter and others, to compel tbe issuance of ejection certificates.

Original proceedings in mandamus by the State, on the relation of Ií. H. Butts, against John T. Wolford, to compel an outgoing City Treasurer to surrender the office and funds in his hands. Peremptory writ awarded.

Certified Questions from Circuit 'Court, Tyler County. Proceeding by A. L. Anderson against the Town of Friendly and others for forfeiture of its charter and for dissolution of its municipal corporation thereby created. Demurrer to petition sustained and question certified.

<p>1. Covenants — Building Line Restriction is Valid and Runs icith the Land.</p> <p>Where the owner of a tract of land lays the same out as a subdivision of a city or town, and conveys to various persons the lots so laid out, in each 'of which conveyances there is contained a covenant providing that any buildings erected upon the land so conveyed shall not be used for other than residence purposes, and shall not be constructed within a less distance than fifteen feet from the street line of said lots, such restrictions are valid and binding, constituting covenants running with the land, and are for the benefit of all of the owners of lots in such subdivision, (p. 559).</p> <p>2. Injunction — Equity May Restrain Violation of Building Covenant Running Kith Land.</p> <p>In case of the violation of such a covenant by the owner of one of such lots a cause of action accrues to the owner of each of the other lots in such subdivision, which may be asserted by resort to a court of equity to prevent by injunction such violation, (p. 559).</p> <p>(Williams, President, absent).</p>

Certified Questions from Circuit Court, Le,wis County. Trespass on the case by the Coal Land Development Company against John C. C'hidester. Demurrer to declaration overruled and questions certified-

Prom an order of Lee Ott, State Compensation Commissioner, directing' the return of a check drawn and mailed hy him to the widow and beneficiary of Yito Orazio Gasparro, an Italian, killed in the state in the course of his employment, within Workmen’s Compensation Act, Gaetano Poccardi, Royal Consul, appeals on be.half of the widow’s heirs, executors, and assigns.

Certified from Circuit Court, Tyler County. Separate indictments against M. B. Ankrom, Sam Hissam, G. C. Fletcher and B. F. Pipes for violation of the law against free passes. Demurrer to each indictment overruled, and action certified for review.

Cases certified from the Circuit Court, McDowell County. Actions by Joseph England and another and by Mary Bishop and another against the Central Pocahontas Coal Company. Demurrers to declarations overruled, and questions certified.

Case Certified from Circuit Court, Wood'County'. Action .by the Cook Pottery Company against J. H. Parker and others, partners, etc. Rulings denying the sufficiency of two ' special pleas of set-off and of a notice of recoupment tendered by. defendants, certified for review.

<p>Original prohibition by the State, on the relation of Logan Scott, against Hon. Warren P. Kittle, Judge, etc. and others.</p>

Certified Questions from Circuit Court, Wood County. Bill by Cyrus M. Boger against Bertha M. Boger for divorce from tile bonds of matrimony filed'more than 2 years after a decree of divorce from bed and board on a bill'filed by defendant. Demurrer to bill sustained, and questions certified.

<p>Error to Circuit Court, Marshall County.</p> <p>Action by Elizabeth Garr against the City of McMechen. From a judgment setting aside a verdict in her favor, plaintiff brings error.</p>

Case Certified from Circuit Court, Berkeley County. Action of trespass on the case by Percy W. Letter against the American-La Prance Fire Engine Company, with orders of attachment upon the City of Martinsburg and John T. Wolford, its Treasurer, as garnishees. Garnishee process quashed, motion to quash the returns of service on defendant company denied, and at the, request of the parties such action was certified.

<p>1. Mines and Minerals — Wrongfulness of Mining Operations Depends on Intent in Doing Acts.</p> <p>In an action for the unlawful removal of coal by wrongfully extended mining operations into adjoining property, the measure of damages depends upon whether the wrongful act was done wilfully and with knowledge of the violation of the property rights of another, or innocently, through the mistaken belief of the trespasser as to his own rights, due to excusable ignorance of the facts upon which such rights depend. (p. 608).</p> <p>2. Same — One Extending Mining Operations Into Another’s Land is a “Willful Trespasser."</p> <p>One who, with knowledge that he is invading the rights of another, extends, or permits the extension of, a mine which he is operating upon his own property into land owned by another, and operates or -permits its operation there, is a wilful trespasser within the meaning of the law. (p. 608).</p> <p>3. Same — ¡For Willful Bubteranean Trespass on Mineral Lands, Measure of Damages is Value of Thing Mined.</p> <p>The measure of damages for a wilful subterranean trespass upon mineral lands is the value of the thing mined, after its severance, without deduction1 of expenses incurred in mining and removing it. (p. 608).</p> <p>4. Limitation of Action — Action for Subterranean Trespass Accrues on Discovery of Wrongful Act.</p> <p>Where a cause of action accrues for the unlawful removal of coal by wrongfully extending mining operations into adjoining property, the statute of limitations begins to run only from the time of actual discovery of the trespass, or the time when discovery was reasonably possible, (p. 614).</p> <p>(Williams, President, absent.) ginia-Pittsirargh Coal Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Error to Circuit Court, Berkeley County.</p> <p>Action by C. E. Martin, trustee in bankruptcy of the Norwalk Motor Car Company, against H. S-. Cushwa. Judgment for plaintiff, and defendant brings error.</p>

Action by the Whitaker-Glessner Company against the Suburban Brick Company. Judgment for plaintiff, motion for new trial denied, and defendant brings error.

<p>Error to Circuit Court, Brooke County-.</p> <p>Action by Florence Helm and others against the Manufacturers Light & Heat Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Disorderly House — House Occupied by Only One Woman Engaged in Promiscuous Intercourse is not a “House of III ■ Fame.”</p> <p>A house solely occupied by one woman who there indulges in illicit sexual intercourse with numerous men, hut not resorted to by any other woman for the purpose of prostitution, is not a house of ill-fame within the meaning of a statute making it an offense to keep such a house, (p. 636). •</p> <p>2. Criminal Law — Where Statute Does not Define House of III Fame, Resort Will Be Had .to the Common Law.</p> <p>The statute not having defined a house of ill-fame, it is necessary to go to the common law for its definition, and, the statute being penal, the common law offense and its definition cannot he judicially enlarged, (p.636).</p> <p>(Williams, President, absent.)</p> <p>(Lynch, Judge, dissents.)</p>

<p>'■ 'Error to Circuit Court, Logan County.</p> <p>b Action by Robert B. Harris against tbe New York Life Insurance Company. Judgment for plaintiff, and defendant brings error. .</p>

Suit for injunction by R. W. Haws and others against tbe County Court of Wayne County. Temporary injunction granted. Prom an order dissolving it, plaintiffs appeal.

<p>1. Indictment and Information — Indictment for Second Offense Must Directly and Precisely Describe the Former Conviction.</p> <p>To subject a defendant, indicted for a second offense against the provisions of section 3, chapter 32A, Code 1918, to the superimposed penalty therein provided, the indictment must aver such former conviction directly, not parenthetically, or by way of participial clause, and describe it with sufficient particularity and precision to advise the accused of the charges he must prepare to meet, and enable the court toi determine whether the .statute applies, (p. 657).</p> <p>2. Criminal Law — In Statute Imposing Additional Penalty for Second “Conviction” That Word Denotes Finality.</p> <p>Where a former conviction, is made the ground of some disability or penalty to be imposed upon a defendant found guilty of a second offense, the word “conviction,” as used in the statute, generally connotes finality of judicial ascertainment, so far as the trial court is concerned, (p. 658).</p> <p>3. Indictment and Information — Indictment for Second Offense Should Aver Sentence on Former Conviction.</p> <p>An indictment charging such former offense should aver not only the conviction, as represented by the' jury’s verdict, but also the sentence based thereon, in order to show that the proceeding for the first offense has attained a state of finality so far as the trial court has power to control it. (p. 658).</p> <p>4. Same — Defective Averment as to Former Conviction Permits Trial for Offense Charged.</p> <p>Defective averments respecting a former conviction for the same offense, incorporated in an indictment as a basis for the infliction of an additional penalty in case the accused is found guilty of the principal offense, do not vitiate the whole indictment, hut only such part of it as charges the former convic-' tion. If otherwise sufficient, the accused may be. put to trial for the prinicpal offense charged against him. (p. 659).</p> <p>■ 5. Criminal Law — 'indictment and Information — Proof of Former Conviction Not Required Where Defendant Confesses It.</p> <p>Ordinarily it is the duty of the state not only to plead, by' proper averment, the fact of the former conviction, but also to prove it by the introduction of the record evidence pertaining thereto; but where the defendant, by voluntary and unretracted admission in open court, confesses a prior conviction, properly averred, there is no necessity for the introduction of formal proof thereof, (p. 660).</p> <p>6. Same — Where Averment as to Prior Offense is Defective Admission of Former Conviction is Not a Confession Permitting Additional Punishment.</p> <p>But where the averment respecting the prior offense is defective, because uncertain and indefinite, an admission by accused of former conviction does not constitute a judicial confession thereof, subjecting him to the additional penalty provided by statute, though made during and for the purpose of the trial, since that portion of the indictment is vitiated by the defect and no longer constitutes part of the offense- charged against him. (p. 660).</p> <p>(Williams, President, absent.)</p> <p>(Ritz, Judge, dissenting in part.)</p>

Case Certified from Circuit Court, Cabell County. Suit by Lueile Crouch against Floyd M. Wartenberg. De,-murrer to bill, interposed by the divorce commissioner, sustained, and ruling certified.

-Case Certified from Circuit Court, Fayette County. Suit by H. L. Goodman and others, as citizens and taxpayers of Quinnimont district, Fayette county, on behalf of themselves and other voters, for an injunction against the County Court of Fayette County. Demurrer to bill overruled, and the ruling certified.-

<p>Appeal from Circuit Court, Logan County.</p> <p>Suit for injunction by the Standard Island Creek Coal Company against the Shamrock Coal Company. Decree, for plaintiff, and defendant appeals.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action of trespass on the caso by W. O. RTewman against Robson & Prichard. Judgment for plaintiff, and defendants bring error.</p>

Suit by Harry S. Irons, administrator, etc., and others against Croft Hat & Notion Company and others. Decree for defendants, and plaintiffs appeal.

Habeas corpus by George Schutte against Henry M. Schutte and others, to obtain petitioner’s discharge from custody of a committee appointed by a lunacy commission to take charge of petitioner and his property. Judgment for defendants, and petitioner brings error.

<p>1. Master and Servant — ¡Federa? Act Makes Employer Liable tor Fellow Servant’s Negligence.</p> <p>Under tlie Federal Employers’ Liability Act, the negligence of a fellow-servant, resulting in injury to an employee, is the negligence of the employer, (p. 708).</p> <p>2. Negligence — Proximate Cause, if Injury is Natural Consequence.</p> <p>If an injury is the natural and probable consequence of an act done under such circumstances and with such knowledge, as ought to have disclosed the danger to an ordinarily prudent person exercising reasonable foresight, the actor is guilty of negligence in the premises and legally liable in damages for the injury, (p. 709).</p> <p>3. Master and Servant — Railroad Held Liable Under Federal Act for Section Foreman’s Negligence.</p> <p>A verdict of a jury in an action against the Director General of Railroads, founded upon the action of a section foreman in charge of repair work on the track of a railroad used in interstate transportation, in prying open drop-doors of a loaded car, while a workman is endeavoring to release the cog-wheel holding them in place, under circumstances ordinarily justifying the use of his hands in a known manner in the operation, without the knowledge of the workman and without knowledge on the foreman’s part, as to whether the wheel had been actually released, is well founded and cannot be disturbed by the court, (p. 709).'</p> <p>(William's; President, absent).</p>